Regulating unruly football fans: the state of English law and proposed improvements
In scenes reminiscent of football’s darker days 7 March 2015 saw two pitch invasions1 at Villa Park. The first took place in stoppage time when a small number of Villa fans ran onto the pitch, forcing referee Anthony Taylor to halt the game. This group were persuaded to remove themselves from the pitch by the mass booing from the remaining fans, the urging of the players and for some the actions of stewards. They did not return to the stands but instead lined the edge of the pitch, braced to return after the final whistle.
Sure enough Taylor’s signal to end the game was also the signal for a mass pitch invasion. The early group were this time joined by thousands more with stewards helpless against the onslaught. Fans made a beeline for the players who were trying to make it to the tunnel. Fabian Delph, Villa’s captain and one of the goal scorers described it as‘dangerous, my arm band got nicked, someone tried to take my boot off my feet, people tried to kiss me and they were biting me, it was crazy’.2 If this was the reaction to a “hero” of the game, one can only imagine what West Brom players experienced as they tried to make their way to the tunnel. Police and stewards focussed their limited resources on dividing West Brom fans and Villa fans. Lest it should be said that only Villa fans were responsible, there were also reports of West Brom fans ripping up seats and throwing them onto the pitch.
Both West Brom and Aston Villa are co-operating with the FA investigation into the incident. A number of arrests have been made and it is expected that more will follow after a review of all the footage available.
Villa has now been charged3 with failing to ensure that no spectators or unauthorised persons were permitted to encroach onto the pitch.
Other recent incidents
Anyone who has had half an eye on the news in recent days, weeks and months will know that the events at Villa Park are not isolated incidents of disorder by English football fans. Examples have included:
- The racist chanting by Chelsea fans on the Paris métro after that team’s first leg tie with Paris Saint-Germain.5 There are allegations of more racist chanting by Chelsea fans on a London to Manchester train soon after Chelsea’s victory in the League Cup on 1 March 2015, in which police were called to the train as it arrived at Stoke station.6
- Reading FC has been charged7 in relation to a pitch invasion at the Madejski Stadium during their sixth-round FA Cup tie with Bradford City (the same charge Villa faces).
- A Watford FC fan suffered life-threatening injuries after that team’s draw with Wolverhampton Wanderers on 7 March 2015.8 A thirteen-year old Wolves fan has been arrested in connection with that attack.9
- On 28 February, serious violence broke out in the stands between Rotherham and Millwall fans. The police had to enter the stadium to quell the situation, which included the throwing of missiles.10
- In November, up to one hundred hooligans were involved in violent disturbances after the Manchester derby, which involved the throwing of bottles, chairs and a flare.11
What are the legal ramifications of the sorts of behaviour described above? As so often, there is a sports-specific answer, and an answer rooted in the more general law.
At the turn of the 1990s, Taylor LJ reviewed the earlier Popplewell reports prepared in the aftermath of the Hysel stadium disaster and the operation of the Public Order Act 1986, which came into force after those reports. The Taylor report recommended certain football-specific offences, later enacted by the Football (Offences) Act 1991.12 Section 4 of that Act provides that ‘[i]t is an offence for a person at a designated football match to go onto the playing area, or any area adjacent to the playing area to which spectators are not generally admitted, without lawful authority or lawful excuse (which shall be for him to prove)’.13Section 2 criminalises the throwing of missiles towards the pitch, and section 3 “indecent or racialistic chanting”. 14
These offences must take place at a “designated football match” as designated by Order (Football (Offences) (Designation of Football Matches) Order 2004 (SI 2004/2410))15. These are matches in which one or both of the teams is a member of the major leagues in the UK, or is a team that represents a country or territory.
If a person has been convicted of a football related offence, the Court is required to consider imposing a football banning order and if one is not made, the Court must give reasons (see Football Spectators Act 1989, section 14A(2) and (3)). Football Banning Orders (FBOs) are the law’s tailor-made weapon against football-hooliganism. Originally set out in the Football Spectators Act 1989 16 as amended by Schedule 1 to the Football (Disorder) Act 2000 17 and by section 52 of the Violent Crime Reduction Act 2006 (and Schedule 3) 18, FBOs give the Courts power to prevent offenders who have been convicted of relevant offences from attendance at football matches.
The relevant offences are wide in scope and include a host of violent, property-related and public order offences. They also include the football-specific offences in the Football (Offences) Act 1991 (see Sch 1, para 1(p) of the Football Spectators Act 1989, as amended).19
Where the Court is satisfied that there are reasonable grounds to believe that an FBO would help to prevent violence or disorder at or in connection with any regulated football match, it is obliged to make the banning order (section 14A(2)).20 FBOs are very wide: they prevent the excluded offender from attending any regulated game in the UK (section 14(4)).21 A Court has no discretion to make an order tailored to a specific team or specific match(es) and the FBO must include provision for the subject of the order to surrender his passport in connection with matches played outside the UK. If the subject of the order is also sentenced to immediate imprisonment, the minimum term of the FBO is 6 years and the maximum 10. If imprisonment is not ordered, the banning order must be for at least 3 years and up to 5.
The Courts’ power to impose FBOs goes beyond circumstances where an offender is convicted of a relevant offence. Where a complaint is made by a police chief constable or the DPP, magistrates must make an FBO where it is proved that the person in question has “caused or contributed to any violent disorder” anywhere in the world (and not necessarily football related disorder) and they are “satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder at or in connection with any regulated football matches” (Football Spectators Act 1989, section 14B(4)).
Amendments made to the 1989 Act by the Violent Crime Reduction Act 2006 make provision for the imposition of bail conditions similar to the terms of a full FBO. Schedule 3(2), for instance, amends the 1989 Act to give magistrates the power to impose a condition of bail that the defendant not leave the UK, or that he surrender his passport if the control period relates to a relevant game outside of the UK.
The equivalent provisions in Scotland are contained in the Police, Public Order and Criminal Justice (Scotland) Act 200622.
Much of the conduct covered by the football-specific offences is arguably punishable under the general criminal law too. In the context of pitch invasions, the most obvious offence is that of aggravated trespass contrary to Criminal Justice and Public Order Act 199423 , section 68 which provides that (1) A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—
- of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
- of obstructing that activity, or
- of disrupting that activity.24
Clearly, this offence can cover pitch invasions in the context of sports other than football.
Further, it is obvious, depending on the facts of a particular disturbance, that offences of violence or other more general public order offences (riot, violent disorder, affray, breach of the peace) may be relevant in the context of a pitch invasion.
The Home Office publishes statistics on football-related arrests and football banning orders. The most recent report is for the 2013-14 season. Both arrests and banning orders decreased by 7% on the 2012-13 figures.25
This leaves aside any civil liability that clubs might face where crowds are guilty of disorder. It goes without saying that clubs will owe tortious duties to spectators and players at common law (most obviously in negligence) and under the Occupiers’ Liability Acts.
The matters set out above deal with the role played by the “law of the land” in preventing and dealing with crowd disorder. But the football regulators (most notably The Football Association ("The FA"), but also the various leagues) are also capable of imposing sanctions.
The FA Rules and Regulations of The Association ("The FA Rule") are fairly comprehensive in this regard. FA Rules, Rule E1 provides an all-encompassing requirement that a “Participant” refrain from “Misconduct”. It is all-encompassing in the sense that Misconduct is defined a breach of the FA Rules, and any affiliated rules (including, for example, the Premier League Rules).26
FA Rules, Rule E20 27 provides that:
Each…Club shall be responsible for ensuring:
(a) that its…spectators, and all persons purporting to be its supporters or followers, conduct themselves in an orderly fashion and refrain from any one or combination or the following: improper, violent, threatening abusive, indecent, insulting or provocative words or behaviour…whilst attending at or taking part in a Match in which it is involved, whether on its own ground or elsewhere; and
(b) that no spectators or unauthorised persons are permitted to encroach onto the pitch area, save for reasons of crowd safety, or to throw missiles, bottles or other potentially harmful or dangerous objects at or on to the pitch’
Rule E20 creates an extremely broad liability for Clubs when it comes to controlling the disorderly conduct of supports (and indeed “all persons purporting to be its supporters or followers”); a club has a defence under Rule E21 if it can show that all events, incidents or occurrences complained of were the result of circumstances under which it had no control.28
It should be noted, however, that the Premier League Rules contain few provisions touching directly upon a club’s obligations to police its support. A notable exception is PL Rule K.14 which provides that ‘Each Home Club shall…procure that Players and Match Officials are provided with a safe and secure means of access to and egress from the pitch prior to the kick-off of a League Match, at the beginning and end of the half-time interval and upon the conclusion of the match’.31
The penalties that can be imposed by an FA Regulatory Commission are enumerated in ascending order of severity at Regulation 8.1 of the FA Regulations for Football Association Disciplinary Action32 (referenced by the FA Rules). They range from a reprimand and/or warning as to future conduct (Reg 8.1(a)) to expulsion from the FA (Reg 8.1(h)).
What else can be done?
1. Look at the timing of the fixture
Local police suggest that one reason for the events at Villa Park was the late kick off between two local sides. Cheshire Police’s Mark Roberts, national lead officer for football policing, questioned playing the tie at 17.30. In an interview with BBC Radio 5 Live he said ‘if you give people four, five, six hours more drinking time, don’t be surprised if in a highly-charged atmosphere, their behaviour isn’t good.’ 33 To the extent that the time was fixed around television viewers this is an inadequate reason to risk the safety of players and staff.
On 17 April 2015, the British Transport Police held a summit involving passengers, clubs, train operators and other interested parties to address the effects of football-related disorder on the rail network. It (almost) goes without saying that much disorder of this nature has alcohol as its cause. The Sporting Events (Control of Alcohol etc.) Act 1985, section 135 makes it an offence to carry alcohol or knowingly permit alcohol to be carried on a public service vehicle or railway passenger vehicle which is being used for the principal purpose of carrying passengers for the whole or part of a journey to or from a designated sporting event (which includes all association football matches by virtue of Sports Grounds and Sporting Events (Designation) Order 2005,36 art 2(2), (3), Sch 2 (amended by SI 2011/1186)).
This offence, however, has been on the statute books since the 1980s. There is a perceived need for more to be done to combat the effects of alcohol in and around games. To that end, Cambridge United will be the first club to institute breathlysing for fans attending home games37. Supporters twice over the drink-drive limit will not be permitted to enter the ground. There is an obvious logic to this effort, though whether it will be rolled out across the country remains to be seen.
3. Look at the level of policing/stewards
Tony Pulis was particularly critical of the level of security and it is fair to say that the stewards and police were completely outnumbered. In the circumstances they focussed on forming a defensive barrier between the West Brom and Aston Villa fans while not attempting to prevent the Villa fans from entering the pitch.38 This may have been the best option but it does call into question the level of security provided for the game. Of particular concern was the level of security provided to the players who were effectively left to make their own way off the pitch against the tide of invading fans. Of course the question is always how much is enough? Sometimes the question is how much is too much? There have been tensions (and full-blown litigation) over charges imposed by police forces in respect of police presence at matches pursuant to section 25(1) of the Police Act 1996 39. The dispute between Leeds United and West Yorkshire Police was taken all the way to the Court of Appeal (Leeds won there and in the High Court)40. Clearly, wrangling of this nature, and disputes between clubs and local police are not conducive to the maintenance of good order, especially where cooperation between police, clubs and the sporting authorities appears to be key in targeting troublemakers.
4. Sanctions for offenders
Clearly a number of people risk being identified and penalised under the rules set out above. The sheer volume of supporters who were involved in the pitch invasion on 7 March at Villa Park, not to mention the age of many participants (minors are clearly shown being photographed on the pitch), mean that it is likely to be impossible to penalise every participant. It is understood that the FA and police are continuing to investigate but it is certainly possible that they (and the Crown Prosecution Service) will seek to focus arrests, criminal charges and prosecutions on those who can be shown to be guilty of the most dangerous or offensive conduct.
5. Sanctions for the clubs
It would appear likely that fines would be appropriate for the clubs under the FA Rules. Depending on what is found in relation to the conduct of the different supporters groups the level of the fine should vary but it seems likely that Aston Villa will face a heavy fine for failing to control its supporters. In 2011, Birmingham City was fined £20,000 (with a further £20,000 suspended)41 because of a violent pitch invasion during its Carling Cup Quarter Final against Aston Villa in December 2010. The fine could have been higher: preparatory and preventative measures taken by the club, and its cooperation with the FA, appear to have acted as mitigating factors. UEFA fined Hearts the relatively modest sum of £4,000 42 for a celebratory pitch invasion at Anfield in 2012.
The problem with this sanction is what is there to deter fans from doing it again? The fine cannot be passed on to the fans involved and unless it is high enough to prevent a potential transfer it is likely to pass most supporters by.
6. Crack down on abusive conduct from fans
Severe penalties on individual incidents of misconduct might help to deter more people from rash acts and a mob mentality. The sanctions applied in the other examples given can serve as a warning to other fans. Perhaps greater use of portable recording devices by stewards and pitch side police officers would also enable more arrests and sanctions regarding abusive behaviour generally. This is of course too little too late for the incident under review but it could help alter the general behaviour at football grounds: behaviour that had appeared to be improving but seems to have suffered a set back of late.
Whatever the action taken in relation to this particular game, it is clear that the recent decline in the behaviour of fans must be stopped. Taking targeted action against individual fans is a more direct solution, in so far as it goes to the source of the problem. It seems to us that collaboration between the authorities (public and sporting) is needed in order to prevent (or eliminate) the few spoiling the game for the many and to help restore the reputation of the “beautiful” game.
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- Tags: Banning Orders | Criminal Justice and Public Order Act 1994 | England | FA Rules and Regulations of the Association Season 2014-2015 | Football | Football (Offences) Act 1991 | Football Spectators Act 1989 | Governance | Occupiers’ Liability Act | Order (Football (Offences) (Designation of Football Matches) Order 2004 (SI 2004_2410) | Premier League | Public Order Act 1986 | Regulation | The FA
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Grahame is a barrister at Littleton Chambers and a member of Littleton’s Sports Law Group. In addition to sports law, he specialises in employment and commercial work.
Lydia is an active member of the Littleton Chambers Sports law group. In line with the broader chambers specialisms Lydia’s core areas of practice are commercial law and employment law. Lydia’s commercial practice encompasses disputes including contractual interpretation, professional negligence and directors’ duties. Lydia’s employment work has a particular focus on disability discrimination but also incorporates all areas of tribunal disputes and high court action in relation to bonuses and restrictive covenants.